India’s Parliamentary Standing Committee on Health has made a strong case for commercial surrogacy — an arrangement which allows a hired surrogate to be compensated for her services beyond reimbursement of medical expenses — on grounds that “economic opportunities available to surrogates through surrogacy services should not be dismissed in a paternalistic manner”.
The panel’s recommendation is in response to the ban imposed last year on commercial surrogacy which prevents foreign couples from hiring surrogates in India. The ban was issued following the Supreme Court’s objection to what it felt was rampant ‘commercialisation’ of surrogacy in the country. The new guidelines allow only infertile Indian couples to go in for altruistic surrogacy under which a woman volunteers to carry a pregnancy for intended parents without receiving any monetary recompense in return.
However, the Parliamentary Committee — formed in January with experts from across the board — has observed that altruistic surrogacy was “extreme and entails high expectation from a woman willing to become a surrogate without any compensation or reward”. It has slammed the government for a “narrow” understanding of Indian society recommending a more progressive surrogacy framework with compensation — and not altruism — at its core.
The panel has argued that if surrogacy allows economically disenfranchised women to earn a remuneration that is otherwise beyond their reach, which they often invest in educating their children or launch small businesses, why should they be deprived of this choice? In any case, monetising surrogacy is a far better option, say activists, in a country where it isn’t uncommon for poor, hapless women to be shepherded into prostitution. They add that the argument that the surrogacy industry exploits impoverished women is also a specious one because surrogates are mostly aware of the financial aspects of the contract making it an informed choice.
India has long been a go-to destination for childless couples seeking to hire a womb. Competitive costs, excellent health infrastructure and flexible regulations have attracted intending parents from around the globe. This has made commercial surrogacy a $2.3-billion (Dh8.44 billion) enterprise in the country today generating valuable revenue through medical tourism.
The arrangement is a win-win for all stakeholders. It empowers poor women as well as childless couples and enables professional clinics to earn precious foreign exchange. Banning commercial surrogacy, on the contrary, can be self-defeating. It will drive the practice underground and encourage lack of transparency in surrogacy contracts making them exploitative. It can also jeopardise the surrogate’s and the baby’s health apart from catalysing a proliferation of unscrupulous doctors and clinics.
The need of the hour, therefore, is to allow commercial surrogacy but regulate the industry through robust laws and proper implementation. This will protect the rights of both commissioning parents and surrogates. An unregulated surrogacy industry, on the other hand, will function in violation of medical guidelines and not have enough legal provisions to safeguard the interests of all parties. An Indian Council of Medical Research report puts the number of IVF (in-vitro fertilisation) clinics in the country at 1,200 out of which only 150 were listed with the premier organisation.
A study supported by the Women and Child Development Ministry points out there is no legally approved payment structure for surrogate mothers. This makes these women dependent on external agencies who facilitate surrogacy arrangements between them, the doctors and the clinics.
Surrogacy is a highly complex issue fraught with legal, emotional and social challenges. What makes it even more complicated is that there are no written, globally accepted fiats over what an ideal surrogacy arrangement should be. This was highlighted in the case of Baby Manji or ‘Baby M’ who was born to a surrogate mother through in-vitro fertilisation — using a Japanese man’s sperm and an egg from an unknown donor — at Anand in Gujarat in 2008. In less than a month, the little one was caught in the vortex of fierce legal battles in two constitutional courts, Rajasthan High Court and in Supreme Court, where a non-profit raised questions on the legal propriety of surrogacy and the child’s nationality. The case presented a stalemate with the judges asking “which law prohibits surrogacy” and the NGO countering it with “which law permits surrogacy”.
Such episodes highlight that both commercial and altruistic forms of surrogacy in any part of the world are open to ambiguity and misinterpretation. Be that as it may, a blanket ban on commercial surrogacy is still not the answer to the problem and is akin to throwing out the baby with the bathwater!
Neeta Lal is a senior journalist based in New Delhi, India